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Court of Criminal Appeal 25 November 2011

O'Hare v R

[2011] NSWCCA 252

Assault & violenceTheft & property
CRIMINAL LAW PLEA OF GUILTY FINDING OF SPECIAL CIRCUMSTANCES PRIOR CONVICTION FOR MANSLAUGHTER SIMILARITY BETWEEN OFFENCES USE OF VIOLENCE

Citation: O'Hare v R [2011] NSWCCA 252
Court: Court of Criminal Appeal
Date: 25 November 2011
Judge(s): Whealy JA, Simpson J, Hoeben J

Background

The applicant pleaded guilty in the District Court at Wagga Wagga to a single charge of aggravated robbery under s 95(1) of the Crimes Act 1900, where the circumstance of aggravation was the use of corporal violence. The offence occurred on 9 November 2009, when the applicant entered a toy shop, assaulted the shop assistant with punches and kicks, demanded money under a false threat of being armed, and took $1,370 from the till. He spent the stolen money on poker machines, alcohol, and cigarettes.

Syme DCJ sentenced the applicant to 4 years and 10 months imprisonment with a non-parole period of 3 years and 4 months, incorporating a 25% reduction for the guilty plea. Her Honour also found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, warranting a departure from the standard ratio between head sentence and non-parole period, due to the applicant's need for supervision upon release.

The applicant sought leave to appeal on two grounds: that undue weight was placed on his prior conviction for manslaughter, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge placed undue weight on the applicant's prior manslaughter conviction, particularly given the similarities between that offence and the present one
  • Whether the sentence of 4 years and 10 months for aggravated robbery was manifestly excessive, including the treatment of the applicant's drug use in the sentencing remarks

Decision

On the first ground, the Court of Criminal Appeal rejected the argument that the sentencing judge had impermissibly used the prior manslaughter conviction to fix an outer boundary for the appropriate sentence. The sentencing judge had expressly acknowledged the Veen v The Queen (No 2) principle, which limits the use of prior convictions to avoid exceeding proportionate punishment. Her Honour used the prior conviction not to elevate the sentence beyond what the current offence warranted, but to assess whether the present offence represented an uncharacteristic aberration or a continuation of a pattern of behaviour. The Court found no error in that approach.

The Court also addressed the similarity between the manslaughter and the robbery. In both offences, the applicant made an unprovoked physical attack on a retail worker while affected by alcohol or drugs. The Court accepted a minor factual distinction raised by the applicant, namely that the manslaughter victim was a shopkeeper rather than an employee, but found this difference inconsequential. The submission that the robbery was "primarily a property offence" was rejected, given the sustained and significant violence involved.

On the second ground, the Court found that the sentence fell within the range properly available to the sentencing judge. The Court accepted that the absence of evidence of actual physical injury to the victim was relevant, but noted the victim was subjected to repeated punching and kicking, was placed in serious fear, and was falsely threatened with a firearm. The Court also rejected the argument that the sentencing judge had made a positive finding that the applicant had not ceased drug use. Her Honour's observations were characterised as findings about the absence of satisfactory evidence either way, which were correct on the material before her.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A prior conviction for manslaughter was properly considered by the sentencing court not to extend the sentence beyond proportionate limits, but to assess whether the current offence reflected a continuing pattern of behaviour involving unprovoked violence against retail workers while intoxicated.
  • Under the principle affirmed in Veen v The Queen (No 2), prior convictions cannot be used to determine the outer boundary of a sentence, but they remain relevant to where within an appropriate range a sentence should sit.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sustained assault involving repeated punching, kicking, and a false threat of being armed does not constitute "primarily a property offence," even where the principal purpose is theft.
  • No error was established where a sentencing judge found only an absence of satisfactory evidence that an applicant had ceased drug use, rather than making a positive finding of continuing use.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 were validly found based on the applicant's need for extended supervision upon release, justifying a departure from the standard head sentence to non-parole period ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 (guilty plea discounts)
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 (proportionality and prior convictions)